United States District Court, D. Nebraska
MEMORANDUM AND ORDER
JOSEPH F. BATAILLON, Senior District Judge.
This matter is before the Court on the government's objection, Filing No. 44, to the findings and recommendation of the magistrate judge, Filing No. 43, (F&R) granting defendant's motion to suppress, Filing No. 16. The Indictment charges the defendant in Count I with conspiracy to distribute and possess with intent to distribute 50 kilograms or more of marijuana, in violation of 21 U.S.C. § 846; in Count II with attempt to possess with intent to distribute 50 kilograms or more of marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1); in Count III with traveling in interstate commerce with the intent to perform an act to distribute the proceeds of such unlawful activity in violation of 18 U.S.C. § 1952(a)(1) and (a)(3); in Count IV with conducting a financial transaction which represented the proceeds of some form of unlawful activity in violation of 18 U.S.C. § 1956(a)(1)(A)(i); and forfeiture in violation of 21 U.S.C. § 853. Pursuant to 28 U.S.C. § 636(b)(1)(A), the court has conducted a de novo determination of those portions of the F&R to which the defendant objects. United States v. Lothridge, 324 F.3d 599, 600-01 (8th Cir. 2003). The court has reviewed the entire record including the transcript of the suppression hearing, Filing Nos. 32 and 38, and determines it will adopt the findings and recommendation of the magistrate judge.
The government in its objections, Filing No. 44, agrees with the recitation of the facts contained in the findings and recommendation, pages 1-3, Filing No. 43. The government also agrees that the traffic stop became a consensual encounter when defendant agreed to stay and answer questions, and that reasonable suspicion was required to detain defendant at the end of the consensual phase of the stop. Filing No. 44, at 3-4. The Court has reviewed the hearing transcript and likewise agrees that the facts as outlined by the magistrate judge are essentially accurate. Therefore, the Court will adopt the following findings of fact:
On June 29, 2014, Omaha Police Officer Troy Liebe ("Officer Liebe") observed Defendant, operating a Chevy Avalanche, traveling westbound on I-80 in Omaha, Nebraska. Officer Liebe initiated a traffic stop of Defendant for following too closely behind another vehicle. A camera in the police cruiser recorded the stop. However, no audio of the stop is available because the recording device in the cruiser was not working and Officer Liebe's microphone was not charged.
Officer Liebe approached Defendant's vehicle, introduced himself, explained the reason for the traffic stop, and asked for Defendant's license and registration. At that time, Officer Liebe noticed a strong odor of air freshener from inside Defendant's vehicle. Officer Liebe asked Defendant where he was headed, and Defendant responded he was going hiking in Wyoming. Officer Liebe asked Defendant to sit in the patrol car while he prepared a written warning for the traffic violation. Defendant complied. As Officer Liebe was filling out paperwork, he asked Defendant a series of questions. In response to these questions, Defendant told Officer Liebe that he was going hiking in Wyoming, but he was not sure where. Defendant said he did not know exactly how long he planned to stay in Wyoming, but he guessed probably about a week or two. Defendant further informed Officer Liebe that he worked as a hotel clerk, and that he had to be back at work the following week, although he had previously told Officer Liebe that he planned to be in Wyoming a week or two.
Officer Liebe completed the warning citation, handed it to Defendant, along with Defendant's documents, and told Defendant he was "good to go." As Defendant reached for the door of the patrol car, Officer Liebe asked Defendant whether he could ask him another question. Defendant agreed. At that time, Officer Liebe explained his responsibility to watch for persons smuggling drugs and large amounts of cash on the interstate. Officer Liebe asked Defendant whether he was involved in criminal activity or had anything illegal in his vehicle. Defendant denied being involved in any illegal activities and told Officer Liebe that he did not have any illegal items in his vehicle. Officer Liebe felt that Defendant was agitated by his questions, and he asked Defendant if he could search his vehicle. Although Officer Liebe never received a direct response from Defendant regarding his request to search, he interpreted Defendant's subsequent statements and annoyed demeanor as a refusal. Then, Officer Liebe told Defendant that he intended to use his police dog, which was in the patrol car, to conduct an exterior sniff of Defendant's vehicle. Officer Liebe called for back-up prior to conducting the sniff, because he felt he could not safely conduct this procedure without assistance.
Within a couple of minutes of Defendant's refusal to consent to the search of his vehicle, and while waiting for back-up to arrive, Officer Liebe explained to Defendant that he was not concerned with a personal use quantity of marijuana or with paraphernalia. Officer Liebe stated that if all Defendant had in the vehicle was personal use marijuana, he would confiscate the drug and let Defendant go. At that time, Defendant admitted to having a gram or two of marijuana in the vehicle and told Officer Liebe that the marijuana was in the center console of his vehicle.
When the back-up officer arrived on scene, Officer Liebe began searching Defendant's vehicle. Officer Liebe located a small amount of hash in the center console of Defendant's vehicle. After finding the hash, Officer Liebe continued to search and, in doing so, located a toolbox containing $351, 360. Officer Liebe then returned to the patrol car and arrested Defendant for possession of hash.
Officer Liebe and the assisting officers took Defendant and his vehicle to the Omaha Police Impound Facility. Omaha Police Officer Edith Anderson ("Officer Anderson") and Omaha Police Sergeant Steve Worley ("Sergeant Worley") advised Defendant of his Miranda rights, following which Defendant agreed to answer questions. Defendant signed a disclaimer of ownership regarding the cash recovered from his vehicle. In response to a question on the form about how the currency came into his possession, Defendant wrote "5-7 years off selling weed." Defendant also signed a permission to search form for two cell phones and a laptop recovered in his vehicle. Following the interview, Defendant and his vehicle were both released. Defendant was not charged with any crimes at that time, but was told the investigation was ongoing. On November 18, 2014, Defendant was indicted on multiple counts, including a forfeiture count.
On February 6, 2015, Defendant filed a motion to suppress evidence, asking that the Court suppress the $351, 360.00 that was removed from his truck, as well as all statements he made subsequent to his seizure and formal questioning by police officers. A hearing on the matter was held before the undersigned on both March 4 and March 19, 2015.
Filing No. 43 at 1-3.
A. Findings of the Magistrate Judge
The magistrate judge determined that the legitimacy of the initial stop was not in question. He further determined that Officer Liebe told the defendant he was free to leave, and thereafter the defendant agreed to answer an additional question. The magistrate judge found the stop at this point to still be consensual. See United States v. Munoz, 590 F.3d 916, 921 (8th Cir. 2010) (stating that if following a traffic stop, the encounter becomes consensual, "it is not a seizure, the Fourth Amendment is not implicated, and the officer is not prohibited from asking questions unrelated to the traffic stop or seeking consent to search the vehicle"). This changed, said the magistrate judge, once defendant did not acquiesce to further being detained for a discretionary sniff of the vehicle. United States v. Jones, 269 F.3d 919, 925 (8th Cir. 2001) (finding that a person is seized within the meaning ...